President Obama has almost certainly heard and read the mounting criticism from immigrant rights, civil liberties and civil rights, and criminal justice reform groups that he is coming close to breaking an unenviable record. The president’s record is not just one of the slowest in modern history to grant pardons or clemency. If he issues none by December 20, he will set the record for the president that has granted fewer pardons that any other president in modern times. By the Thanksgiving holidays, Obama had issued none. There’s certainly no shortage of requests for pardons and clemency or compelling cases where White House mercy could and should be shown.
The checklist includes dozens of outrageous cases of inmates serving absurdly long sentences for non-violent, minor drug offenses under the racially-skewed minimum mandatory drug laws. President Obama has written and spoke about the unfairness in some of this sentencing. Congress modified the sentencing disparity on crack versus powdered cocaine but it is not retroactive.
There are legal immigrants who’ve resided in the US for years who face deportation for minor criminal offenses. There are battered and abused wives who killed in self defense, legions of inmates who were sentenced as a result of tainted, perjured, or doctored testimony, and prisoners who have become positive models of educational and spiritual of achievement and redemption. There are even historical figures who suffered wrongs such as racially persecuted boxer Jack Johnson. A slew of conservative legislators led by John McCain have pushed for a posthumous pardon for Johnson. No go so far on any of the requests.
According to DOJ figures the number of pardon and commutation sentence requests to the White House totals nearly 5,000 as of September. The number continues to grow.
Obama has been accused of insensitivity, indifference to criminal justice issues for refusing to grant pardons or clemency. Others say the White House is gun shy of repeating the fiasco that plagued Clinton when then Deputy Attorney General Eric Holder got ripped for signing off on a pardon request for outlaw financier Mark Rich in 2001. But Holder’s input on Rich was only one factor in Clinton’s decision to pardon Rich, and it was ultimately Clinton’s call. Then there was the the claim that Holder routinely cleared Clinton’s brother Roger of any wrongdoing when he lobbied brother Bill to grant pardons for a drug trafficker and other high level crime figures. Clinton did not grant the pardons. The GOP made the Clinton pardon controversy an issue in Holder’s confirmation hearing.
But to grant or not to grant pardons and clemency can’t be separated from politics. That’s even more the case when a moderate, or liberal Democrat occupies the White House, and in Obama’s case, an African-American. The scrutiny is even more relentless. And Democrats are hyper-sensitive to the dread charge of being “soft on crime” from the GOP and conservatives. This ranks just below the soft on terrorism and military toughness charge that the GOP has also masterfully plastered Democratic presidents with.
In the 1988 presidential election George Bush flummoxed Democratic presidential candidate Michael Dukakis with the Willie Horton soft-on-crime rap. It stuck, and sunk his White House bid. Democratic Presidential contenders Al Gore and John Kerry avoided, and Democratic governors avoid like the plague any appearance that they are soft on crime, and make granting pardons and clemency the lowest of low priorities for them. Yet some critics have still compared Obama’s record to Bush. This is unfair. Although Bush was spare with pardons, only 200, but he did grant them. But Bush’s reputation as an ultra-conservative, law and order proponent was very well established. He feared no backlash, or political fall-out from the pardons he granted. Obama doesn’t have that luxury.
Obama faces another problem on the parole issue. The drug laws have hit hardest at African-Americans and many legal immigrants that commit minor crimes are immigrants, Latino, Caribbean and African. If they do not receive a fair share of White House pardons and clemency Obama will face anger that an African-American, constitutional law expert, and a one-time community organizer, he is insensitive to the plight of those victimized, and that he should use his pardon power to make the case that the criminal justice system is inherently unfair to minorities. In other words, Obama will be accused of shirking his supposed duty to send the message that the criminal justice is unfair, capricious, and arbitrary, and thus strengthen the case for reforms.
But hammering Obama as insensitive, uncaring, or timid in granting reforms, ignores the fact that he is in a precarious political box. He is the most watched and scrutinized president in modern history and must exercise extreme caution on pardons and clemency for racial, political, and even practical reasons. Ultimately, Obama will grant pardons and clemency because he knows that despite the political risks fairness and merit demand it.
Earl Ofari Hutchinson is an author and political analyst. He hosts nationally broadcast political affairs radio talk shows on Pacifica and KTYM Radio Los Angeles. Follow Earl Ofari Hutchinson on Twitter: http://twitter.com/earlhutchinson and on thehutchinsonreportnews.com